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Abstract:
Much of American legal discourse is driven by concern over how judges should follow or create legal doctrines - decision-making rules established or endorsed by higher courts that stipulate, with varying degrees of specificity, outcomes that should follow from underlying fact patterns. In this Article, we model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. Working out of a Law and Positive Political Theory framework, we focus on the amount of judicial political control exercised in the choice between creating determinate (highly specified) and indeterminate (weakly specified) doctrines within a hierarchy of courts. The model assumes that the creators of legal doctrine - higher courts - are policy seeking actors who, within the limitations of professionalism and public legitimacy, manipulate the structure of legal doctrine to maximize political-ideological policy objectives. The key determinants of doctrinal choice in our model are (1) the amount of political-ideological alignment between lower and higher courts, (2) the inherent control characteristics of doctrines themselves, and (3) how the choice of doctrines maps on to preferred litigant successes.

Positive Political Theory, Legal Doctrine, Judicial Hierarchy

Abstract:
Contrary to traditional wisdom, judges are not passive receivers of their agendas. Instead, many judges attempt to shape their dockets by encouraging potential litigants to bring particular cases. This encouragement takes the form of judges signaling their own positions on an issue as well as their colleagues' expected support. This process is modeled as a signaling game, with both separating and pooling equilibria resulting. The existence of pooling equilibria is of particular interest, as it indicates some judges misrepresent the chances of success of a case in order to induce desired legislation.

Courts, information asymmetry, agenda setting, certiorari, litigation

Abstract:
This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely he or she is to vote in favor of an intellectual property claim. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

Intellectual Property, Ideology, Politics, Attitudinal model, Empirical

Abstract:
Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures of judicial behavior on these results offer the potential to improve analysis of judicial decision-making. This article formally explores three commonly posited modes of judicial decision-making: a minimum winning coalition model, representing attitudinalist views of judicial decision-making; a maximum winning coalition, capturing the effect of norms of joint opinion writing and collegiality; and a strategic model, incorporating the concept of the credibility of a marginal justice’s threat to defect from a majority coalition. Each model yields comprehensive predictions of case outcome positions and coalition sizes under given Court compositions; the Rehnquist Court and Roberts Courts are examined here. The models are then operationalized as measures for empirical use. The different impact of the three measures is illustrated by re-running Baird and Jacobi’s analysis of judicial signaling on case outcomes using each measure.

competing, models, judicial, coalition, formation, case outcome, determination, Jacobi

Abstract:
Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures of judicial behavior on these results offers the potential to improve analysis of judicial decision-making.

This article formally explores three commonly posited modes of judicial decision-making: a minimum winning coalition model, representing attitudinalist views of judicial decision-making; a maximum winning coalition, capturing the effect of norms of joint opinion writing and collegiality; and a strategic model, incorporating the concept of the credibility of a marginal justice's threat to defect from a majority coalition. Each model yields comprehensive predictions of case outcome positions and coalition sizes under given court compositions; the Rehnquist Court is examined here. The models are then operationalized as measures for empirical use. The different impact of the three measures is illustrated by re-running Baird and Jacobi's analysis of judicial signaling on case outcomes using each measure.

law and economics, legal procedure, the legal system and illegal behavior, econometric and statistical methods, analysis of collective decision-making, economic models of political processes

Abstract:
The Supreme Court's cruel and unusual punishment jurisprudence increasingly relies on state legislation to establish whether a national consensus has evolved against particular forms of punishment. This article argues that trends in state legislation should not be a basis for interpreting the Eighth Amendment. Using state legislation to establish a national consensus is contrary to basic notions of federalism, and is so methodologically indeterminate as to be entirely subjective. The states were intended to be independent from one another's policy preferences, to allow them to act as policy-making laboratories for the nation. Resting constitutional interpretation on the preferences of a majority of states is antithetical to the federal system. In application, the use of state legislation creates doctrinal chaos. The Supreme Court cannot agree on how to characterize, group or count state legislation. Once legislation is counted, the Court cannot agree on what actually constitutes a "consensus." Although the Court justifies its reliance on state legislation on the basis of its alleged objectivity, this uncertainty means that the use of state legislation is more subjective than traditional doctrines, such as culpability and proportionality. The lack of a clear standard as to what constitutes a national consensus has resulted in questionable findings, which in turn are relied on, creating an increasingly lax standard of cruel and unusual jurisprudence.

cruel and unusual, eighth amendment, constitutional law, death penalty, Supreme Court, state legislation, federalism, methodology

Abstract:
This article proposes that dissenting Supreme Court justices provide cues in their written opinions to future litigants about ways the litigants can reframe case facts and legal arguments in similar future cases so as to be more likely to garner majority support. Specifically, we look at dissenting opinions that suggest that cases in that policy area should be framed in terms of the federal-state relationship. Litigants may interpret this as a signal to bring the Court cases with new facts and legal arguments that are amenable to being decided on the basis of federal versus state power. The empirical tests show that when dissenting opinions in a policy area signal a preference for transforming the issue into a legal argument about federal versus state power, the coalition that previously had been in the minority is in the majority in those future years significantly more often, showing that these dissenting signals are systematically successful in transforming dissenting coalitions into majority coalitions.

Abstract:
Despite the enormous media attention given to the success of Innocence Projects in exonerating wrongfully convicted defendants in criminal cases through the use of post-conviction DNA testing, it is far more common for such tests to confirm petitioners' guilt. Guilt-confirming DNA testing imposes enormous costs on the state, in terms of the financial cost of testing, prosecutors' time in vetting petitions, and victim trauma. This Article develops an economic screening model that shows that the best regulatory response is to punish prisoners who seek post-conviction DNA testing - when those tests confirm guilt - with additional incarceration. This has the effect of forcing prisoners to self identify as guilty or innocent, and of discouraging guilty prisoners from seeking petitions, while freeing up resources to help exonerate the truly innocent. We examine the limitations of alternative responses taken by state regulators. We also consider possible constitutional objections to our proposal, both in terms of cruel and unusual punishment and due process requirements. The self-screening scheme can most easily be adopted by states through use of the good time credits systems, since every state that has a post-conviction DNA testing regime also has a good time credits statutory regime, and the Supreme Court has approved punishment in the form of revocation of good time credits. The self-screening scheme proposed here has been largely adopted in Missouri, however Missouri imposes a set penalty of 60 days additional incarceration for guilt-confirming tests. Our model shows that perfect self identification will only occur when either (i) the incarceration penalty is considerably higher than Missouri's 60 day penalty; or (ii) the incarceration penalty varies by the length of sentence of the petitioner. If either of these schemes is adopted, petitions for post-conviction DNA testing by guilty prisoners can be expected to be overwhelmingly diminished, saving the state considerable resources, and removing a major obstacle to exonerating actually innocent prisoners.

DNA, screening, innocence project, post-conviction, private information, constitutional criminal, constitutional, criminal

Abstract:
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi's earlier theoretical work by empirically testing those competing measures of case outcomes.

The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion in relation to Supreme Court intellectual property cases spanning the same period. The large-n data enables us to make statistically robust assessments, whereas the small-n data facilitates alternative measurement strategies and coherent doctrinal analysis. We find a viable measure of case outcomes exists that is reliable and valid. As well as suggesting the best means of scoring case outcomes, our results enhance scholars' understandings of Supreme Court jurisprudence and inform the debate over how courts decide cases.

Judicial behavior, Empirical legal studies, Measurement, Ideology, Collegiality, Strategic behavior, Intellectual property, Supreme Court

Abstract:
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization.

This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes. The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion in relation to Supreme Court intellectual property cases spanning the same period. The large-n data enables us to make statistically robust assessments, whereas the small-n data facilitates alternative measurement strategies and coherent doctrinal analysis. We find a viable measure of case outcomes exists that is reliable and valid. As well as suggesting the best means of scoring case outcomes, our results enhance scholars’ understandings of Supreme Court jurisprudence and inform the debate over how courts decide cases.

Judicial behavior, Empirical legal studies, Measurement, Ideology, Collegiality, Strategic behavior, Intellectual property, Supreme Court

Abstract:
We model legal doctrine as an instrument of political control by higher courts over lower courts and the case outcomes they produce. We focus on the choice between determinate and indeterminate doctrines within a hierarchy of courts where political-ideological alignment between lower and higher courts varies. We show that the choice over doctrinal determinacy depends on the distribution of cases, the distribution of litigants, judicial types, and the level of policy alignment between higher and lower court judges. The model suggests the optimal doctrinal choice for a high court, given the political-ideological alignment between the high court and the lower court, the control characteristics of doctrines themselves, and the matching of doctrines to litigant pools. This has implications regarding preference divergence within the judicial hierarchy, the interaction of different doctrines, and interplay between doctrinal specificity and doctrinal reach.

Abstract:
This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. This article empirically establishes that judicial decision making in relation to IP is significantly and predictably shaped by judicial ideology. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

intellectual property, ideology, politics, attitudinal model, empirical, supreme court, federal circuit, patent, copyright, trademark, trade secret